Michael Carroll Quoted in Huffington Post article on iBook Libraries

Michael Carroll was quoted in a Huffington Post article "iBooks Author Requires Selling Original Books Through iBookstore, Says Apple's Controversial Contract," published on Sunday, January 22:

"...Michael Carroll of the American University Law School, told HuffPost in a phone interview that although he believes the contract passes the presentation test, he is not as sure it would pass unconscionability:

"Basically, unconscionability says that if you want the court to enforce your agreement -- generally, we enforce a contract even if it's a bad deal -- but at their outer limits, there are terms that are so unfair where the court says I'm not doing justice if I enforce this law," he said. "A court is not going to enforce the terms of a contract if it would shock the conscience if it enforced the term."

"More and more, courts are uncomfortable about declaring contract terms to be unfair," Carroll added. "If someone had a good reason for wanting to sell their book somewhere other than the iBookstore, and Apple actually went after them ... then there would be a close case."

There are a couple things to consider about a potential legal skirmish, Carroll said. First, it is not necessarily incumbent upon the author to sue for the right to sell books elsewhere; it could just be that authors will quietly export their iBooks in a different file format, sell their works as they please and fly under Apple's too-large radar.

And Carroll isn't totally convinced that Apple will find it worthwhile to allocate resources -- the time, lawyers and money -- to finding and prosecuting small-scale authors who have used iBooks Author, especially since copyright cases are difficult to prove and breach of contract cases don't bring much monetary award.

Plus there's the potential public relations disaster of attacking an artist in court. Carroll predicted that it would take a monster hit created within iBooks that's sold elsewhere to put the Apple law machine in motion, if that.

"It might get tested in the marketplace, with authors just going their own ways, and the EULA only gets tested if there's a blockbuster and then Apple goes after them," Caroll said..."